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12/14/2015

So Is It Binding?
Michael Ramsey

Secretary of State Kerry is applauding the agreement reached by the climate change conference in Paris.  But (as far as I can tell) he has not been clear on whether it is a binding agreement under international law.  For reasons I have discussed here in connection with the Iran nuclear deal, that makes a huge difference constitutionally.

As I assume the Paris agreement will not be submitted to Congress or the Senate for express approval as a treaty or a congressional-executive agreement, the question is: how can it be constitutional?

(1)  It could be a nonbinding agreement.  This is the most promising constitutional route.  As I've argued previously, the President likely has power to conclude nonbinding agreements as part of his executive power in foreign affairs.  There remain a couple of concerns (which I developed in connection with the Iran deal).  The most prominent is that, in my view, the President has a constitutional obligation to make clear that a nonbinding agreement is nonbinding.  Although the State Department eventually made clear that the Iran agreement was nonbinding, the delay in doing so was problematic, especially to the extent it may have misled other parties to the agreement or inadvertently created obligations under international law.  Second, on a quick read, the Paris agreement does not look like a nonbinding agreement; rather (as Dan Bodansky anticipated here), it looks like an ordinary multilateral treaty in its formalities (full text here; note for example the references to "entry into force"; the provision that no reservations may be made; and repeated use of "shall" in reference to parties' undertakings).  The United States cannot simply declare something to be nonbinding (especially a multilateral agreement) if the other parties to the agreement reasonably do not understand it this way.  Third, as I argued in connection with the Iran agreement, it is problematic for the President to commit the United States, even in a nonbinding way, to specific actions beyond the President's term (and thus beyond his control).  It amounts to promising something he cannot deliver.  I haven't looked closely enough at the Paris agreement to know whether this is a problem.

(2)  It could be an executive agreement.  Again, as discussed in connection with the Iran deal, in my view the President has some limited power to enter into binding agreements on his own authority -- but only those that are short-term, minor, or within his specific substantive areas of constitutional authority such as military agreements.  It would seem a stretch to put the Paris agreement in this category.

(3)  Perhaps the President could argue that the agreement was approved in advance (or more likely that authority was delegated to him) by a prior statute.  This seems unlikely, but it depends on a review of applicable statutes that I haven't done.  I agree with Oona Hathaway in this article that the standard for finding approval/delegation to enter into international agreements should be fairly high given the "lock in" effects of a binding international agreement.  One would want to be confident not only that Congress wanted the President to take action in a given area, but also that it wanted the President to be able to lock in that action against future revision.

The Paris agreement seems to raise two other possibilities.  First, suppose the agreement is binding in a formal sense (that is, it has the appearance of a binding agreement, the parties intend it to be binding, etc.) but the actual substantive provisions do not in fact impose any material requirements upon the parties.  My impression is that this might be a fair description of the agreement.  Can the President enter into such an agreement on his own authority?  Maybe, on one of two theories: (1) despite the formalities, it is in effect an nonbinding agreement and so should be treated as one for constitutional purposes; or (2) because it does not impose any material obligations on the United States, it can be concluded as a (putatively binding) executive agreement.  

Finally -- and I am only speculating here, again not having studied the relevant provisions -- perhaps the Paris agreement will be incorporated into another binding agreement, specifically the pending Trans Pacific Partnership (TPP).  The TPP makes a reference to the Paris agreement; if the reference is sufficient to incorporate the Paris agreement into the TPP, then Congress' approval of the TPP (if it happens) arguably would be an approval of the Paris agreement as well.  If you think Congress' approval (as opposed to the Senate's supermajority approval) is constitutionally sufficient for the TPP, that might be a way to make the Paris agreement constitutional.  At least, it's something for Congress to think about as it considers whether to approve the TPP.